IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111206

Docket: M125447

Registry:
New Westminster

Between:

Amandeep Atker

Plaintiff

And

Gopalan Nair

Defendant

Before:
The Honourable Madam Justice Wedge

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff, Amandeep Atker, was driving her 2001
Mazda Protégé through the parking lot of a shopping mall in Surrey, B.C., on
February 25, 2008, when she was struck by a 1999 Plymouth Minivan driven by the
defendant.

[2]            
Ms. Atker was proceeding along an aisle of the parking lot which
had vehicles parked on either side of her. The defendant was attempting to
reverse out of one of the parking stalls. He did so abruptly and rather
quickly, striking the driver’s side door of Ms. Atker’s Mazda in what has
been described as a “T-bone” collision.

[3]            
From photographs of the car, it appears that the front driver’s side
door of the Mazda was dented somewhat. The repairs cost in the range of $2,000.
The rear bumper of the defendant’s Minivan had some scrapes. The cost of its
repair was approximately $200.

[4]            
As a result of the damage to Ms. Atker’s car, Ms. Atker was
required to exit through the passenger side door. Her six-week-old baby was in
a car seat in the rear of the vehicle on the driver’s side and was unhurt in
the collision. A relative of Ms. Atker came to pick her up from the scene
of the accident. Ms. Atker was shaken by the incident.

[5]            
Liability is admitted. The issue is the extent of Ms. Atker’s
injuries and the damages claimed by her.

[6]            
Ms. Atker submits that she suffered soft tissue injuries to her
neck, left shoulder, left upper and lower back, left hip and leg. She says
those injuries have resulted in chronic myofascial pain which she continues to
suffer to some extent to the present. She seeks compensation under the
following heads of damage:  non-pecuniary damage; past wage loss; loss of
future income earning capacity; special damages; cost of future care; in-trust
claim for others; loss of domestic capacity; interest; and costs.

[7]            
By way of background, at the time of the incident, Ms. Atker was 30
years of age. She had given birth to a baby six weeks earlier. She was married
and had two other children, age three and one and a half, at the time of the
accident. Ms. Atker was employed as a full-time light fixture assembler by
a company known as Ledalite in Langley, B.C., and was on maternity leave at the
time of the accident (which, as I have already noted, occurred on February 25,
2008).

[8]            
Ms. Atker testified that she “did not feel too badly” immediately
after the accident other than being shaken and shocked by it, but gradually
began feeling worse in the hours after the accident. She was less than two
months postpartum and was still actively breastfeeding her infant daughter. She
attended at her doctor’s office the following morning, February 26.

[9]            
Her family doctor, Dr. Daljit Claire, noted that Ms. Atker
complained of left-sided neck pain, shoulder pain and arm pain, particularly
around the elbow. The neck pain radiated down the left side of the shoulder and
upper back area. Dr. Claire gave a preliminary diagnosis of soft tissue
injuries to those areas and contusion to the left arm. He prescribed
Extra-Strength Tylenol and a topical anti-inflammatory, Diclofenac. He could
not prescribe any other medications because Ms. Atker was breastfeeding
her infant at the time.

[10]        
Ms. Atker’s domestic circumstances at the time of the accident were
as follows. She lives in a large home in the Surrey area with her extended
family consisting of her husband and three children, her sister, her
father-in-law, mother-in-law, sister-in-law, brother-in-law and their two young
children. In all, there were 11 members living in the home. Five of them were
very young children at the time. The domestic duties were shared equally by Ms. Atker
and her sister-in-law, with some babysitting assistance provided by Ms. Atker’s
mother-in-law.

[11]        
Ms. Atker and her sister-in-law achieved this division of domestic
duties by working at different times outside the home. Ms. Atker worked
from 3:15 to 11:15 p.m. Monday to Friday at Ledalite, and her sister-in-law
worked at her job from approximately 6:30 a.m. to 3:30 p.m. Accordingly, Ms. Atker
got the five children up each morning, prepared breakfast, packed lunch for her
husband, did the requisite cleaning, and took the school-aged children to
school. She then prepared lunches for those at home and did the remaining
household duties until she went to work mid-afternoon. Her mother-in-law minded
the children until other adults arrived home. As I have already noted, Ms. Atker
was on maternity leave when the accident occurred and was not due back to work
until November 17, 2008.

[12]        
Following the accident, Ms. Atker continued to experience pain in
her neck and her shoulder on the left side and her left arm. She continued breastfeeding
her infant for another six weeks or, so but found she could not continue due to
the pain she experienced while sitting and attempting to breastfeed. Once she
stopped breastfeeding, Dr. Claire prescribed other analgesics to address
her discomfort.

[13]        
In the first two to three months after the accident, Ms. Atker was
in quite acute pain from her soft tissue injuries. The pain was no doubt
exacerbated by the fact that initially she could only take over-the-counter
medications. During those first two to three months, she relied heavily on her
sister-in-law to perform all of the domestic duties for the family rather than
sharing them. In other words, Ms. Atker’s sister-in-law was performing
child care for five children and managing the cleaning and cooking
responsibilities for a household of 11 people. Ms. Atker testified that
gradually after the first two to three months she was able to once again take
on some of the domestic duties, although the more physically intense ones such
as mopping the floor, and preparing some of the foods became problematic for
her, and accordingly her sister-in-law continued to perform all of those tasks.

[14]        
Ms. Atker attended at Dr. Claire’s office regularly every one
to two weeks after the accident, and his medical report describes her ongoing
condition. While Ms. Atker reported some alleviation of her symptoms, for
the most part they persisted, to the extent that Dr. Claire made referrals
to a neurologist and a physiatrist. There were x-rays and MRI scans performed. The
neurologist ultimately concluded there were no neurological injuries and that
the injuries appeared to be to the soft tissues of neck, shoulder and back.

[15]        
In early November 2008, shortly before Ms. Atker’s maternity leave
ended, Ms. Atker visited Dr. Claire. He reported that Ms. Atker
said she still had problems with neck and shoulder pain and had been doing a
limited amount of grocery shopping and housework. Dr. Claire recommended
that she seek a graduated return to work with light duties. However, Ms. Atker’s
employment circumstances were such that she was required to return to full-time
work. In her department at Ledalite, there was no opportunity for lighter
duties or less hours.

[16]        
Ms. Atker returned to work for less than a day on November 17, 2008.
She left after five hours, complaining of severe pain. Her employer advised her
she should remain off work until she was fully able to return for an eight-hour
a day job in the assembly department.

[17]        
Dr. Claire referred Ms. Atker to a physiatrist in December
2008, but the appointment was not until May of 2009. In the interim, Dr. Claire
could only suggest that Ms. Atker try to find alternate part-time work
with a different employer.

[18]        
Ms. Atker continued to see Dr. Claire regularly during the
first six months of 2009. She complained of ongoing neck and shoulder pain and
episodic back pain. She experienced flare-ups in her pain when she tried to
increase her activities in the home. Dr. Claire prescribed analgesics and
anti-inflammatories as well as therapies such as massage therapy. He also
advised her to undertake an exercise program.

[19]        
Ms. Atker saw the physiatrist Dr. Jaworski on May 27, 2009. He
concluded she was suffering from myofascial pain, that is, pain from her soft
tissue injures, and mechanical back pain, that is, back pain related to
physical activity commonly triggered by trauma such as the motor vehicle
accident in which Ms. Atker was involved.

[20]        
Dr. Jaworski recommended a number of therapeutic measures, such as
regular exercise, and for flare-ups or for pain, anti-inflammatories and
massage. Dr. Jaworski was of the opinion that Ms. Atker was able to
return to work with these modalities in place.

[21]        
Ms. Atker did return to work full-time in June 2009 and has
remained at work since that time with intermittent brief absences due to
flare-ups of her neck and shoulder. Ms. Atker testified she works
full-time but uses Advil regularly to deal with the discomfort.

[22]        
One of Ms. Atker’s co-workers who worked closely with her during
the first year of Ms. Atker’s return to work testified that she often
appeared to be suffering from pain in her shoulder and upper back. The
co-worker said she often helped Ms. Atker with the heavier light fixtures,
which weighed between 40 and 60 pounds, and frequently massaged Ms. Atker’s
shoulder or provided pressure to her upper back to help relieve the pain.

[23]        
Dr. Jaworski provided a medical opinion and testified in the
proceeding. He documented four visits by Ms. Atker between May 27 and
August 21, 2009. After the initial May 27 visit to which I have already
referred, Ms. Atker saw Dr. Jaworski again on July 22. Ms. Atker
reported that she had been back at work since June 9. She reported having
fewer aches and pains, and overall Dr. Jaworski thought she appeared to be
managing fairly well. There were no new findings on physical examination. Dr. Jaworski
suggested an hour of brisk walking.

[24]        
In her next visit of August 19, 2009, Ms. Atker reported increased
shoulder pain and there was tenderness as well as some trigger points in the
left trapezius muscle. Dr. Jaworski concluded she was experiencing a
flare-up of her myofascial pain. He told Ms. Atker she should continue to
consider the possibility of having trigger point injection therapy. During her
last visit two days later, Ms. Atker advised she was nervous of the
injection therapy and afraid of needling procedures and their potential
side-effects. She wanted an MRI conducted on her neck instead, but Dr. Jaworski
told her there was little likelihood of any significant findings in an MRI of
the neck, and further that any findings would not likely change the
recommendations for pain management.

[25]        
In his report and in oral evidence, Dr. Jaworski expressed the view
that in the absence of other factors, Ms. Atker’s myofascial pain and
mechanical back pain was likely or probably caused by the MVA and that her pain
was now chronic in nature and may flare up intermittently. Dr. Jaworski
opined that further management should consist of encouragement to lead a
physically active lifestyle despite lingering pain. Trigger point injection
therapy would be an option for the left shoulder trapezius pain. Other
modalities indicated were over-the-counter analgesics and anti-inflammatories
and massage therapy. Dr. Jaworski saw no contraindication for Ms. Atker
continuing in her work as a light fixture assembler at Ledalite.

[26]        
Ms. Atker did eventually decide to follow up with the trigger point
injections. She had several flare-ups of her neck and trapezius pain in 2010. She
saw Dr. Claire on November 24, 2010, with an acute flare-up. He advised
her to take analgesics as needed and to take one to three days off work.

[27]        
Ms. Atker attended the Surrey Memorial Pain Clinic in May 2011 for
assistance from a Dr. Twist. According to Dr. Claire (I refer to his
medical report at page 9), he saw Ms. Atker on July 11, 2011, with an
acute flare-up of her neck and trapezius area, having been off work for a
couple of days with the pain. Shortly after that Ms. Atker saw Dr. Twist
again, and this time received a series of block injections with Marcaine, a
local anaesthetic, and Kenalog, an anti-inflammatory. She reported to Dr. Claire
approximately two weeks later that the injections had been helpful in relieving
the pain.

[28]        
Dr. Claire, like Dr. Jaworski, was of the opinion that Ms. Atker
suffered soft tissue injuries to her neck, left shoulder and upper back in the
trapezius region in the motor vehicle accident. It was his opinion that her
ongoing episodic pain in those areas were myofascial pain relating to the
accident. He, too, was of the view that Ms. Atker could continue with her
current line of work. His recommendations for ongoing management were very
similar to those of Dr. Jaworski. Like Dr. Jaworski, Dr. Claire was
of the view that Ms. Atker may continue to have episodic exacerbation of
her neck and upper back pain during times of heavy activity.

[29]        
It was suggested by the defendant in argument that Ms. Atker
suffered from shoulder and lower back pain prior to the accident and that this
pre-existing condition was likely a cause of Ms. Atker’s complaints after
the accident. The defendant relies on two documents in Dr. Claire’s
clinical records which indicate investigative measures taken with respect to
back and shoulder pain.

[30]        
I do not accept the defendant’s argument. First, according to Dr. Claire,
Ms. Atker had not seen him for over two years before the accident. He saw
her in December 2006 for an unrelated arm rash. Secondly, Ms. Atker was a
good employee who missed no work before her accident. She had been working in
her job full-time since March of 2007. Her work requires her to be on her feet
for an eight hour shift, moving along a 12-foot table while performing the
final assembly of light fixtures. Third, Ms. Atker was carrying a
significant domestic load in her home with young children and extended family
members without any difficulty. Her spouse, Mr. Sahota, testified that Ms. Atker
was extremely active and did all of the family’s domestic chores before the
accident and shared others with her sister-in-law. His evidence was not
challenged. I found him to be a credible witness, and I accept his evidence in
that regard.

[31]        
I found Ms. Atker’s evidence to be credible as well. Her complaints
of pain were clearly taken at face value by both Dr. Claire and Dr. Jaworski.
Neither suggested that she was exaggerating or that she was displaying any pain
magnification behaviours. It was undisputed that only recently Ms. Atker
attended the pain clinic for trigger point injections to alleviate her shoulder
and upper back discomfort despite her fear of that kind of therapy. It also
appears that the injections provided her with some relief.

[32]        
I will now turn to the various heads of damage claimed by Ms. Atker.
The first of those is the claim for non-pecuniary damage. Ms. Atker
advanced a number of decisions of this Court in support of her argument that
the appropriate range of damages is in the $50,000 to $70,000 range. The
defendant argued that the non-pecuniary damages in Ms. Atker’s
circumstances would be at most $25,000, or more likely in the $11,000 to
$23,000 range.

[33]        
The cases cited by Ms. Atker included Brock v. King, 2009
BCSC 1179; Lakhani v. Elliott, 2009 BCSC 1058; Patel v. Ling,
2007 BCSC 1570; and Shearsmith v. Houdek, 2008 BCSC 997.

[34]        
The cases cited by the defendant in support of his range of damages
included Huynh v. Vo, 2006 BCSC 1736; Kain v. Kirkman, 2006 BCSC
1770; Lopez v. VW Credit Canada Inc., 2008 BCSC 320; Rochon v. Mott,
2009 BCSC 247; Thomas v. Wormsley, 2009 BCSC 919; and Job v. Van
Blankers, 2009 BCSC 230.

[35]        
As I have indicated, Ms. Atker was on maternity leave at the time
of her accident. She was barely six weeks postpartum. Her spouse, whose
evidence I accept, spoke to the change in Ms. Atker from an attentive
mother and spouse to someone who was irritable and short-tempered due to the
pain she suffered in the first year after the accident. Ms. Atker
attempted to continue breastfeeding her infant but was precluded from doing so
because of the pain and inability to take the medication that would alleviate
the pain.

[36]        
Her first attempt to return to work was unsuccessful. When she did
return, she was in significant pain for some time thereafter. Her symptoms have
gradually resolved, but she continues to take over-the-counter anti-inflammatories
to help deal with the physical demands of her job as a production line worker.

[37]        
While Ms. Atker returned to work full-time successfully, she does
continue to experience intermittent flare-ups. The evidence suggests that her
neck and shoulder pain, while much less than it was initially, will
occasionally flare up and cause problems in the future.

[38]        
Her injuries and their duration are closer in kind to some of the
authorities advanced by the plaintiff, although not quite as severe. They are
most similar to other cases, such as O’Rourke v. Kenworthy, 2009 BCSC
1277; Cabral v. Brice; 2010 BCSC 197; and Fiust v. Centis, 2005
BCSC 1067. I have concluded that an appropriate award for Ms. Atker’s
non-pecuniary loss is $45,000.

[39]        
I turn next to loss of past income. Ms. Atker was scheduled to
return to work on November 17, 2008, when her maternity leave expired. She
could not stay on the job for the full shift and left after five hours. It was
her understanding that she could not seek a graduated return to work with
shorter shifts or lighter duties, and that understanding was confirmed by her
supervisor who testified in the proceedings.

[40]        
Ms. Atker was simply told to return to work when she could manage
the full eight hour shift and the full range of job duties, which, as I have
indicated, included being on her feet eight hours a day and moving along a
12-foot-long table performing the final assembly of light fixtures. Ms. Atker
saw Dr. Jaworski, the physiatrist, in late May 2008 and it was following
his report to Dr. Claire that she was given clearance to return to work.

[41]        
The defendant argued that Ms. Atker could have sought lighter
part-time work during the time that she was off work between November 17 and
June 9, 2009. I do not accept that argument. Ms. Atker had permanent
full-time employment with Ledalite. That employer had no light duties for her
to perform, nor was it prepared to have her work shorter shifts. The defendant
led no evidence to suggest what alternate work Ms. Atker could have
obtained with a different employer during that time. This is really a
mitigation argument. As such the onus is on the defendant to establish that
such short-term alternate employment was reasonably available. There was no
evidence led by the defendant on the issue.

[42]        
Ms. Atker testified that had the accident not occurred she would
have returned to work three months before her maternity leave expired because
she left work three months earlier than planned due to complications with her
pregnancy. As such, she said she was actually on maternity leave without any
benefits for those last three months, having exhausted her benefits by leaving
work three months before she planned to do so.

[43]        
From the information supplied by Ms. Atker’s employer, it is clear
that she went on maternity leave September 17, 2007. She gave birth on December
30, 2007, approximately three and a half months later. Accordingly, Ms. Atker’s
benefits would have expired three months earlier than November 17, 2008. The
question, however, is whether Ms. Atker established that she was unable for
medical reasons to return until July 9, 2009. I am also slightly troubled by
the lack of evidence concerning the actual amount of maternity leave benefits Ms. Atker
was receiving.

[44]        
Overall, while I am satisfied that Ms. Atker was unable to return
to work in November 2008, I conclude on the basis of Dr. Claire’s evidence
that she was likely able to at least attempt to return to work in April of 2009.
In other words, Ms. Atker’s past wage loss extends from August 17, 2008,
to April 5, 2009. That is a 32-week period, during which time her wage rate was
$11.35 per hour. At that rate her gross wage loss was $14,528. That is the
amount I will award for past wage loss. I will leave it to counsel to determine
her net wage loss based on the appropriate income tax deductions.

[45]        
I turn next to Ms. Atker’s claim for loss of future income earning
capacity. The plaintiff must first prove that his or her earning capacity as a
capital asset has been impaired. Once impairment is established it must be
valued: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11, and Steward
v. Berezan, 2007 BCCA 150 at para. 17.

[46]        
Further, as a condition precedent to an award of damages for loss of
earning capacity, the plaintiff must prove a real and substantial possibility
of lost future wages, rather than mere speculation concerning such loss: Steward
v. Berezan.

[47]        
An individual may suffer continuing physical symptoms without suffering
a loss from earning capacity: Sinnott v. Boggs, 2007 BCCA 267 at para. 11.
Damages for future loss of earning capacity will only be awarded where the
plaintiff has suffered a permanent injury.

[48]        
In the present case, neither Dr. Claire nor Dr. Jaworski was
of the view that Ms. Atker’s future light fixture assembly job would be in
any way in jeopardy as a result of her injuries. Accordingly, I have concluded
that the evidence, including the medical evidence, does not establish Ms. Atker’s
claim for future loss of earning capacity. I accordingly dismiss the claim
under that head of damage.

[49]        
I turn then to Ms. Atker’s in-trust claim. I accept the evidence of
Ms. Atker and her spouse that prior to the accident, Ms. Atker was
responsible for the full spectrum of child care and house care duties together
with her sister-in-law and did in fact fulfill all those duties before
reporting for work for an eight hour shift each day. I also accept her evidence
that following the accident, Ms. Atker’s sister-in-law performed all of Ms. Atker’s
duties for the first two to three months. I accept that Ms. Atker continued
to require her sister-in-law’s assistance, albeit to a lesser extent, for a
further four to five months.

[50]        
It is open to the Court to observe that it would cost approximately $20
per hour to hire a domestic worker to perform those duties. I cannot calculate
the in-trust claim with mathematical precision, but on the basis of the time
frames involved, I am satisfied that an in-trust award of $5,000 is appropriate
in the circumstances.

[51]        
The next head of damage is future loss of housekeeping capacity. While I
accept the evidence of Dr. Claire and Dr. Jaworski that Ms. Atker
may suffer occasional episodic flare-ups of her neck and shoulder pain in the
future, there is very little evidence on which to base anything more than a
nominal amount under this head of damage. I award Ms. Atker $500 for a
future loss of domestic capacity based on the limited evidence of possible
flare-ups in the future.

[52]        
Finally, I turn to the issue of cost of future care. Ms. Atker
seeks $10,000 under this head of damage. The defendant says there should be no
award. As noted in my discussion concerning other heads of damage, there is a
real possibility of occasional episodic flare-ups of Ms. Atker’s
myofascial pain in the future. Those flare-ups may require some treatment. The
authorities establish that first there must be medical justification for such a
claim, and second, the claims must be reasonable. The authorities also
establish it is not necessary that specific items of cost of future care be
approved by medical experts.

[53]        
Dr. Jaworski testified that Ms. Atker would benefit from
massage therapy if her myofascial pain is exacerbated from time to time. Both Dr. Claire
and Dr. Jaworski emphasized that Ms. Atker will benefit significantly
from an active physical exercise regime. I accept that such a regime would best
be achieved by a gym membership. Given the domestic circumstances in Ms. Atker’s
home, she cannot realistically be required to embark on an exercise regimen in
the home. Finally, the evidence establishes that Ms. Atker may require
another series of injections for her neck and shoulder pain. Based on these
factors, I would award Ms. Atker $1,500 for cost of future care.

[54]        
Finally, I turn to special damages. Ms. Atker has provided a
schedule of receipts in the amount of $3,695.58 representing transportation
costs, fees incurred for visits to various medical practitioners and the cost
of medication and massage and other forms of therapy.

[55]        
Included in that special costs claim is the cost of an MRI conducted in
India. As I indicated to Ms. Atker’s counsel on the last day of trial,
that MRI claim cannot stand as it was not ordered by either Ms. Atker’s
attending physician or Dr. Jaworski. Both concluded that an MRI at that
stage was not indicated.

[56]        
Further, it appears to be a matter of agreement now between the parties
that the prescription costs are properly Part 7 claims. Accordingly, both the
MRI and prescription claims must be deducted from the damages claimed by Ms. Atker.
I will leave it to counsel to do the math under this head of damage.

[57]        
If there are any disagreements between counsel concerning the final
amount of special damages, they can provide their respective positions in
writing and send them to me through the Vancouver registry.

[58]        
In summary, then, Ms. Atker is entitled to the following:  $45,000
for non-pecuniary damages; $14,528 (gross) for past income loss, counsel to
calculate the tax consequences; $5,000 for in-trust award; $500 for future loss
of housekeeping capacity; $1,500 for future cost of care; special damages to be
calculated.

[59]        
Finally, subject to submissions of the parties, Ms. Atker is
entitled to her costs.

[60]        
Any questions, counsel?

[61]        
 MS. MACAULEY:  My Lady, there was an offer to settle made by the
plaintiff on October 18 and delivered to the defendant on that date and it
appears – I’m just trying to do the rough calculation in my head, like the wage
loss met, but it appears at this moment that this judgment may have actually
exceeded that amount and if that is the case, the plaintiff would like to make
submissions with regards to the offers to settle.

[62]        
THE COURT:  Yes. That is fine. If counsel would discuss this between
them, you can provide something to me in written form through the registry, and
counsel for the defendant can provide argument on costs.

[63]        
MS. LEUNG:  Yes, My Lady. Thank you.

[64]        
THE COURT:  Very good.

[65]        
MS. MACAULEY:  Thank you.

[66]        
THE COURT:  Thank you.

The
Honourable Madam Justice C.A. Wedge